California employers are subject to increasingly complex wage and hour requirements. Navigating these rules can be a trap for the unwary. Meal periods, in particular, are frequently litigated and can result in significant liability for employers. The following guidance is intended to clarify meal period requirements in California.
In California, meal periods are governed by various provisions of the Labor Code (e.g. Cal. Lab. Code § 512), wage orders issued by the Industrial Wage Commission (“IWC”) (e.g. Wage Order No. 5), and case law interpreting both. In Brinker Restaurant Corp. v. Superior Court, the California Supreme Court issued a landmark decision regarding meal periods. 53 Cal. 4th 1004, 1020, 273 P.3d 513, 522 (2012). It found that once an employer affords a non-exempt employee with a reasonable opportunity to take a 30-minute uninterrupted meal period, the employer is not required to ensure that the employee does not perform any work during the meal period.
Meal Period Requirements
California’s meal period requirements apply to non-exempt employees who work more than 5 hours per day. Subject to a few exceptions, an employer must provide an off-duty meal period of at least 30 minutes no later than the end of an employee’s fifth hour of work. If, however, an employee works no more than 6 hours in one day, the meal period may be waived by mutual consent of the employer and the employee.
If an employee works more than 10 hours in a day, an employer must provide a second meal period of at least 30 minutes no later than the end of the employee’s tenth hour of work. An employer and employee may waive the second meal period by mutual consent if the employee works no more than 12 hours in a day, as long as the first meal period was not waived. In other words, an employer must provide at least one meal period to an employee who works more than 10 hours in a day, and the meal period must be taken before the employee begins the sixth hour of work.
An employer complies with meal period requirements by: (1) relieving the employee of all duty; (2) relinquishing control over the employee; (3) providing a reasonable opportunity for the employee to take an uninterrupted 30-minute meal period; and (4) not discouraging or impeding the employee in any way from taking a meal period.
The meal period is unpaid, provided the foregoing requirements are met. Employers who fail to comply with these requirements must pay the employee an additional hour of compensation at the employee’s regular rate of pay for each day the employer failed to provide a compliant meal period.
Timing of Meal Periods
While the rules regarding meal periods may seem straightforward, employers might still find themselves confused regarding the timing of meal periods, particularly with respect to employees who work more than 10 hours in a day. The following examples are designed to illustrate when meal periods should be taken.
Employee who works from 9:00 a.m. to 3:000 p.m.: Employers are required to provide a 30-minute meal period prior to the employee beginning his or her sixth hour of work. In this example, the employer would need to provide a meal period prior to 2:00 p.m. The only timing requirement is that the employee must not work more than 5 hours before a meal period is provided. Thus, the employee could take his or her meal period at any time prior to 2:00 p.m. (e.g. at or before 1:59 p.m.).
Because the employee’s shift does not exceed 6 hours, the employer and the employee are permitted to agree in writing in advance to waive the meal period.
Employee who works from 8:00 a.m. to 7:30 p.m.: In this example, the employer is required to provide two meal periods. The first must begin before the employee commences his or her sixth hour of work (e.g., prior to 1:00 p.m.). The second must begin no later than the end of the employee’s tenth hour of work. If the first meal period was thirty minutes in length, then the second meal period would need to commence prior to 6:30 p.m. Since the employee is not working more than 12 hours in a day, the employer and employee are permitted to agree in writing in advance to waive the second meal period, provided that the first meal period was not waived.
In Brinker, the California Supreme Court made clear that the only timing requirement for the second meal period is that it must occur no later than the end of the tenth hour of work, regardless of when the first meal period occurred. In so finding, the court rejected the plaintiff’s argument that the second meal period must occur no later than 5 hours after the first meal period ends if the first meal period was taken prior to the end of 5 hours of work. According to the plaintiff, an employee who begins work at 8 a.m. and takes a 30-minute meal period from 12:00 – 12:30 p.m. would need to take a second meal period after another 5 hours of work, or no later than 5:30 p.m. The court found that neither the plain text of Section 512 of the California Labor Code nor any wage order issued by the IWC imposed such timing requirements on the second meal period—“While we agree that the period before a first meal is limited to 5 hours . . . , we cannot agree that [the meal period requirements] limit to five hours the amount of work after a meal.”
Limited Exception for On-Duty Meal Periods
Employers may permit employees to take on-duty meal periods in limited circumstances. The employer and employee must agree, in writing, that the meal period will be on-duty, and the nature of the employee’s work must prevent the employee from being relieved of all duty. In most circumstances, the written agreement must state that the employee may revoke the agreement, in writing, at any time. The on-duty meal period must be counted as time worked and compensated accordingly. Employers are encouraged to use caution when implementing on-duty meal periods as they have only been upheld in limited circumstances.